A-10555066-7
Decided by Board August 19, 1957
Deportability — Willful failure to furnish notification of address — Not continuing ground if permission to reapply granted.
Liability to deportation under section 241 (a) (5) of the act of 1952 for failure to furnish notification of address is not defeated merely by the act of departing from the United States and making a new entry. However, when an alien is granted permission to reapply after having been deported on this ground, he would not, upon return to the United States, again become deportable on the same charge by reason of his prior conduct.
CHARGES:
Order To Show Cause: Act of 1952 — Section 241 (a) (2) ( 8 U.S.C. 1251 (a) (2)) — Entry without inspection.
Act of 1952 — Section 241 (a) (5) ( 8 U.S.C. 1251 (a) (5)) — Failed to furnish notification of address.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring deportation of the respondents on the charges set forth above. The issue is as to the denial of the respondents' applications for voluntary departure. The appeal will be dismissed.
Respondents are a 28-year-old male and his 27-year-old wife. Both are natives and citizens of Canada. They last entered this country on July 15, 1956, after a short visit to Canada. Admission was on a claim to birth in the United States. Respondents first entered the United States in July 1952, when they were allegedly admitted temporarily as visitors for pleasure. They lived in the United States from the time of their admission in 1952, with the exception of 2 short visits to Canada. The respondents failed to furnish the Attorney General with notification of their address in 1953, 1954, 1955, and 1956 in compliance with the provisions of section 265 of the Immigration and Nationality Act ( 8 U.S.C. 1305). Such failure was due to their desire to avoid apprehension by the Service.
Although the respondents made a weak claim to the belief that the law did not apply to them, we believe the special inquiry officer correctly found that respondents had failed to establish that their failure to comply with the requirements of the registration law was neither unwillful nor reasonably excusable. Respondents are deportable on both charges. Respondents are not eligible for suspension of deportation; they may not, therefore, be granted voluntary departure (section 244 (e), 8 U.S.C. 1254 (e)).
There is an issue present which has not been dealt with fully by the special inquiry officer. It arises from the fact that to sustain the charge reliance is had upon the commission of acts which occured prior to the aliens' last entry into the United States. We believe that it is proper to do this. Section 241 (a) (5) ( 8 U.S.C. 1251 (a) (5)) does not couple deportability with any particular entry. It merely makes deportable an alien "in the United States" who —
has failed to comply with the provisions of section 265 unless he establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful * * *.
A departure from the United States does not necessarily wipe out a ground of deportability which resulted from an act committed in the United States prior to the departure. For example, an alien who had been a member of a subversive organization in the United States and who had terminated such membership did not free himself from liability to deportation by reason of that membership by departing from the United States and making a new entry ( United States ex rel. Belfrage v. Kenton, 224 F. (2d) 803 (C.A. 2, 1955), see also Matter of A----, A-5170719, 6 IN Dec. 684, 687-8). The cited cases involve subversives and criminals. As to these, Congress has shown the strongest desire that the deportation process should not be avoided.
In cases under section 241 (a) (5) Congress has strongly indicated its desire that aliens like the respondents who are not eligible for suspension of deportation must be deported. Section 242 (b) of the act ( 8 U.S.C. 1252 (b)) provides for the grant of voluntary departure without the institution of deportation proceedings. It expressly forbids the grant of voluntary departure to one whom the Attorney General "has reason to believe" is deportable under section 241 (a) (5). Section 244 (e) ( 8 U.S.C. 1254 (e)) which provides for voluntary departure after deportation proceedings have been instituted, prevents the grant of voluntary departure to an alien who is not eligible for suspension of deportation and is deportable under section 241 (a) (5). ( See also Senate Report No. 1137, 82d Cong., 2d sess., pp. 30-31; House Report No. 1365, 82d Cong., 2d sess.)
The intent of Congress is, therefore, unmistakable that an alien deportable under section 241 (a) (5) and not eligible for suspension of deportation must be ordered deported from the United States for his willful failure to comply with the alien registration laws. This intent and purpose must not be defeated because an alien steps outside the borders of the United States temporarily. Congress has not stated its reason for requiring deportation in certain specified cases; however, the fact remains that a person who is deported from the United States cannot lawfully enter without express permission from the Attorney General (section 212 (a) (17), Immigration and Nationality Act; 8 U.S.C. 1182 (a) (17)). If the alien does enter the United States without such permission he is guilty of a felony (section 276, Immigration and Nationality Act; 8 U.S.C. 1326). The person ordered deported is subject to certain control by the Attorney General while he is in the United States (section 242 (c), (d), (e), Immigration and Nationality Act; 8 U.S.C. 1252 (c), (d), (e)). Moreover, if an alien is deported and reenters unlawfully, he can be summarily deported (section 242 (f), Immigration and Nationality Act; 8 U.S.C. 1252 (f)).
The respondents are the parents of 3 native-born United States citizen children. The male respondent is a skilled metal pattern maker. The respondents desire to return to the United States. The ground on which they are deportable is not a ground of inadmissibility. If they receive permission to reapply for admission after arrest and deportation, they would not be ineligible for admission to the United States because of their violation of section 265. Congress has provided for the grant of permission to reapply for admission after arrest and deportation to certain aliens who have been deported. There is no ground of exclusion which is based on respondents' violation of section 265. Congress contemplated the lawful entry of a person previously deported under section 241 (a) (5) ( See section 242 (f)). It follows that respondents would not again be deportable on the same ground by reason of the same acts which they have committed, if they return to the United States.
Order: It is ordered that the appeal be and the same is hereby dismissed.